JUDY THORPE VS. JUSTIN SWIDLER, ESQ. (L-0274-17, MERCER COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0649-17T3

JUDY THORPE,

Plaintiff-Appellant,

v.

JUSTIN SWIDLER, ESQ., and
KARPF, KARPF & VIRANT, PC,

Defendants-Respondents.

Argued March 6, 2019 – Decided May 7, 2019

Before Judges Koblitz, Currier, and Mayer.

On appeal from Superior Court of New Jersey, Law
Division, Mercer County, Docket No. L-0274-17.

Judy Thorpe, appellant, argued the cause pro se.

Stephen T. Bissell argued the cause for respondents
(Rebar Bernstiel, attorneys; Cathleen Kelly Rebar and
Stephen T. Bissell, of counsel and on the brief).

PER CURIAM
 Plaintiff Judy Thorpe appeals from the orders denying her leave to file an

amended complaint and the subsequent dismissal of the complaint. After

reviewing her contentions in light of the record and applicable principles of law,

we affirm.

We provided a thorough recitation of the facts in a prior decision in this

matter, and therefore do not repeat them here. Thorpe v. State Juvenile Justice

Comm'n, Nos. A-0104-11, A-5603-11 (App. Div. June 10, 2015). We include

only a brief background necessary for the reader's comprehension.

Plaintiff began working as a nurse for the New Jersey Juvenile Justice

Commission (JJC) in 2005. Over the next several years, she filed several

complaints with the Equal Employment Opportunity Office (EEO) of the New

Jersey Department of Law and Public Safety. The complaints alleged

discrimination based on her age, race, and unlawful retaliation in violation of

the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49; violations of the

Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101 to 12213; and

sexual harassment. EEO's investigations found the allegations meritless. The

Civil Service Commission affirmed.

In a four-month span, numerous subordinates filed harassment complaints

against plaintiff. The JJC served plaintiff with multiple notices of disciplinary

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action, charging her with insubordination and conduct unbecoming a public

employee. When plaintiff refused to comply with the procedures necessary to

return to work following a medical leave, the JJC sought to terminate her for

failure to follow sick leave procedures, insubordination, and "other sufficient

cause."

After a hearing officer sustained the charges, plaintiff was terminated

from her employment in 2008. She appealed, and the arbitrator found the JJC

had just cause to terminate plaintiff. Plaintiff subsequently filed unfair practice

charges against the JJC and her union with the Public Employment Relations

Commission (PERC). PERC determined plaintiff's challenge to the arbitrator's

decision was meritless.

In 2008, plaintiff retained defendants Justin Swidler, Esq. and Karpf,

Karpf & Virant, PC to represent her in a pursuit of her employment

discrimination matter before the New Jersey Superior Court. Defendants filed

a complaint against the JJC and others, alleging violations of the LAD, the

Family Medical Leave Act (FMLA), 29 U.S.C. § 2615 (a)(1), and the

Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -14.

After granting defendants summary judgment, the trial court dismissed

plaintiff's complaint in 2010. In affirming the trial court's order, we stated:

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 In a thorough oral opinion, the [trial] judge found that
all of plaintiff's claims had been unsuccessfully raised
by her in her prior EEO complaints, and her Civil
Service Commission, arbitration, and disciplinary
proceedings. Therefore, the judge held that plaintiff
was collaterally estopped from pursuing these same
allegations in the Law Division. However, the judge
went on to consider the merits of plaintiff's claims and
found that plaintiff failed to establish a prima facie case
of discrimination or retaliation under the LAD, CEPA,
FMLA, or the common law.

[Thorpe, slip op. at 11].

After a de novo review, we agreed that plaintiff failed to establish her

allegations of discrimination or retaliation. In addition, we found the JJC

"presented overwhelming evidence that all of their actions regarding plaintiff

were based on legitimate business considerations . . . [and] plaintiff failed to

present sufficient evidence to show that [the JJC's] reasons for their employment

actions were a pretext for unlawful discrimination." Id. at 16. We also found

plaintiff's CEPA claims were meritless. Id. at 16-17.

The litigation before us arises out of plaintiff's suit against defendants

filed in December 2016. In her complaint, plaintiff alleged multiple causes of

action, including professional negligence regarding defendants' representation

of her in the employment discrimination matter. Defendants moved to dismiss

the complaint, contending the statute of limitations barred plaintiff's claims, and

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plaintiff was collaterally estopped from asserting a legal malpractice action due

to the myriad of decisions determining her underlying claims were meritless.

At plaintiff's request, defendants' motion was adjourned several times.

Then, two days before the scheduled argument date, and over two months after

the filing of defendants' motion, plaintiff filed a cross-motion seeking leave to

file an amended complaint.1

In an oral decision on July 28, 2017, the trial judge first addressed

plaintiff's motion. She determined the legal malpractice claim accrued, "at the

latest, in early 2011 when plaintiff allege[d] she read the transcript of the

summary judgment hearing and discovered defendants' [negligence]."

Therefore, the proposed amended complaint filed in July 2017 was untimely

under the six-year statute of limitations. See N.J.S.A. 2A:14-1. Because

plaintiff's "proposed amended complaint set[] forth entirely new facts and events

to support her claim," it could not relate back to the original filing date under

Rule 4:9-3. The motion to file an amended complaint was denied.

1
The motion judge described the proposed amended complaint as "entirely
unlike the previous complaint in style and content." In contrast to the original
six-page complaint, the sixteen-page proposed amended complaint contained a
"ten page fact section with multiple subsections replete with allegations never
before seen by the [c]ourt," including over 100 averments.
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 In turning to defendants' dismissal motion under Rule 4:6-2, the judge

noted the original "complaint only contain[ed] factual allegations [of]

professional negligence or legal malpractice." She stated:

Because plaintiff's alleged damages flow from losing an
employment discrimination case, she must ultimately
[prove] that if defendants had not breached their duty
of care, she would have been successful [in] that matter.

....

Plaintiff could not have prevailed in any of her
claims regardless of defendants' actions. . . . The
Appellate Division found overwhelming evidence that
plaintiff's employer dismissed her . . . for legitimate
business reasons.

As a result, the judge dismissed the complaint with prejudice. 2 Subsequent

motions for reconsideration and to vacate the July 21, 2017 orders were denied.

Plaintiff argues on appeal that the trial judge erred in denying her leave to

amend the complaint and in granting defendants' motion for dismissal. We

disagree.

Although a motion presented under Rule 4:9-1 should be liberally granted,

it nevertheless remains within the court's discretionary purview whether to grant

leave. Kernan v. One Washington Park Urban Renewal Assocs., 154 N.J. 437,

2
The orders are dated July 21, 2017.
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456-57 (1998). If it is clear that the amendment is meritless and cannot

withstand dismissal under a Rule 4:6-2 application, it is not an abuse of

discretion to deny the motion to amend. Notte v. Merchs. Mut. Ins. Co., 185

N.J. 490, 501 (2006). It is "error to permit an amendment that fails to state a

cause of action on which relief can be granted." Pressler & Verniero, Current

N.J. Court Rules, cmt. 2.2.1 on R. 4:9-1 (2019) (citing Howard v. Univ. of Med.

& Dentistry of N.J., 172 N.J. 537, 559-60 (2002)).

After receiving defendants' motion for dismissal, plaintiff opposed the

motion and requested several adjournments of the hearing. More than two

months later, and just two days before the hearing, plaintiff moved for leave to

amend her complaint. As the trial judge noted, the new complaint was "entirely

unlike" the original complaint as it contained new legal theories premised on

new factual allegations.

Plaintiff learned in December 2010 that summary judgment was granted

to the defendants in the employment discrimination action; she stated she read

the transcript of the summary judgment hearing in early 2011. Therefore, the

statute of limitations expired, at the latest, in early 2017. Plaintiff did not move

to amend her complaint until July 2017, after the expiration of the statute of

limitations. The proposed amended complaint contained distinctly new and

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different claims and factual allegations. Therefore, it could not relate back to

the original complaint filing under Rule 4:9-3. See Young v. Schering Corp.,

275 N.J. Super. 221, 230-31 (App. Div. 1994). We cannot discern an abuse of

discretion in the denial of the motion to amend.

In reviewing a Rule 4:6-2(e) dismissal, we employ the same standard as

that applied by the trial court. Donato v. Moldow, 374 N.J. Super. 475, 483

(App. Div. 2005). Our review is limited to the "legal sufficiency of the facts

alleged in the complaint." Id. at 482. (citing Printing Mart-Morristown v. Sharp

Elecs. Corp., 116 N.J. 739, 746 (1989)). We "assume the facts as asserted by

plaintiff are true," and we give the plaintiff "the benefit of all inferences that

may be drawn." Banco Popular N. Am. v. Gandi, 184 N.J. 161, 166 (2005)

(quoting Velantzas v. Colgate-Palmolive Co., 109 N.J. 189, 192 (1988)).

"Where, however, it is clear that the complaint states no basis for relief and that

discovery would not provide one, dismissal of the complaint is appropriate."

Cty. of Warren v. State, 409 N.J. Super. 495, 503 (App. Div. 2009).

Plaintiff's argument that the trial court erred in dismissing her complaint

lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-

3(e)(1)(E). We affirm substantially for the reasons expressed by the trial judge

as reflected in her well-reasoned oral opinion of July 28, 2017. This court

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previously determined that the JJC terminated plaintiff for legitimate business

reasons. As a result, plaintiff could not, and did not, prove essential elements

of her LAD and CEPA claims. Therefore, any allegations of negligence by

defendants are immaterial. Their actions, right or wrong, could not change the

deficiencies in plaintiff's claims. As she could not sustain a cause of action

against defendants, her complaint was rightfully dismissed under Rule 4:6-2.

Affirmed.

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